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Show THE LAND FACTOR IN APPROPRIATING WATER 257 domain pursuant to local customs, laws, and court decisions. Most western lands were then in public ownership. Necessarily, the early relationship of appropriative rights to public lands was close and, at first, of vital impor- tance. Thus, in California, the claimant of an appropriative right had the burden of showing that it pertained to public lands of the United States.166 As late as 1921, the California Supreme Court commented that an appropriation of waters flowing through private lands, made under the Civil Code, was but another form of prescription.167 In Oregon, it was held that the doctrine of appropriation applied only to rights acquired under the Act of Congress of 1866.168 And the Washington Supreme Court said that "the doctrine of appropriation applies only to public lands, and when such lands cease to be public and become private property, it is no longer applicable."169 These views were expressed and reiterated in one form or another in many court decisions in these States. This judicial association of appropriation of water with public land exclusively-except where prescriptive rights vested through adverse possession and use of water as against private lands-developed in jurisdictions in which the riparian doctrine was also accepted. It was based on the view that by these Acts of Congress, the United States waived its riparian streamflow rights with respect to its own riparian lands in these jurisdictions in favor of intending appropriators of water of the same stream; but that when any parcel of land contiguous to a stream passed to private ownership, it immediately became vested with a riparian water right in such stream. When this occurred, the now privately owned parcel contiguous to the stream, and use of the water flowing by or across the land and necessary for its enjoyment, were immune from attack by any subsequent appropriator. From this, there was deduced the narrow and artificial relationship of water appropriation to public land only. The high courts of these jurisdictions clung tenaciously to this concept for a long time. They were sometimes disposed to revert to it even after the general tide had turned.170 Eventually, however, in line with the trend toward restricting application of the riparian doctrine as against appropriations of water, the narrow concept was altered. Riparian rights, where recognized at all, were limited to the actual water needs of riparian landowners. Whether the stream flowed across public or private lands, or both, riparian owners had no claim on excess water. Now the law in these jurisdictions is that surplus waters in a source of supply above the quantities to which prior appropriative rights and riparian 166 Santa Cruz v.Enright, 95 Cal. 105, 113, 30 Pac. 197 (1892). 167San Bernardino v. Riverside, 186 Cal. 7,13, 198 Pac. 784 (1921). 168Simmons v. Winters, 21 Oreg. 35, 42, 27 Pac. 7 (1891). 169Benton v. Johncox, 17 Wash. 277, 289,49 Pac. 495 (1897). 170See Wallace v. Weitman, 52 Wash. (2d) 585, 586-587, 328 Pac. (2d) 157 (1958). 450-486 O - 72 - 19 |